Citation Nr: 0639496
Decision Date: 12/19/06 Archive Date: 01/04/07
DOCKET NO. 04-19 094 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased rating for service-connected
osteochondroma and chondromalacia of the left knee (left knee
disability), currently rated 10 percent disabling.
2. Entitlement to an increased rating for service-connected
chondromalacia of the right knee (right knee disability),
currently rated 10 percent disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. J. Vecchiollo, Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to June
1969.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision from
the Waco, Texas, Department of Veterans Affairs (VA) Regional
Office (RO).
FINDINGS OF FACT
1. The veteran's service-connected left knee disability
currently manifested by pain, swelling, mild lateral
instability, degenerative joint disease (DJD) shown on X-ray
evaluation, flexion to between 130 and 140 degrees, and
extension to 0 degrees.
2. The veteran's service-connected right knee disability is
currently manifested by pain, swelling, mild lateral
instability; DJD shown on X-ray evaluation, flexion to
between 115 and 125 degrees, and extension to 0 degrees.
CONCLUSIONS OF LAW
1. The criteria for the assignment of an evaluation in
excess of 10 percent for the service-connected left knee
disability, identified as DJD, are not met. 38 U.S.C.A. §
1155, 5103, 5103A, 5107 (West & Supp. 2005); 38 C.F.R. §§
4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5260,
5261 (2006).
2. The criteria for the assignment of a separate 10 percent
rating for the service-connected left knee disability,
identified as lateral instability, are met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107(b) (West & Supp. 2005); 38 C.F.R. §§
4.7, 4.71a, Diagnostic Code 5257 (2006).
3. The criteria for the assignment of an evaluation in
excess of 10 percent for the service-connected right knee
disability, identified as DJD, are not met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West & Supp. 2005); 38 C.F.R. §§
4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5014, 5260,
5261 (2006).
4. The criteria for the assignment of a separate 10 percent
rating for the service-connected right knee disability,
identified as lateral instability, are met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West & Supp. 2005); 38 C.F.R. §§
4.7, 4.71a, Diagnostic Code 5257 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
A. Duties to Notify and Assist
The VA is required to notify the veteran of any evidence that
is necessary to substantiate his claim, as well as the
evidence VA will attempt to obtain and which evidence he is
responsible for providing. The veteran should also be
informed to submit all relevant evidence he has in his
possession. Quartuccio v. Principi, 16 Vet. App. 183 (2002);
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, and 3.326(a) (2005). The requirements apply to all
five elements of a service connection claim: veteran status,
existence of a disability, a connection between the veteran's
service and the disability, degree of disability, and
effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
Such notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). See
Pelegrini v. Principi, 18 Vet. App. 112 (2004). This was
accomplished in this case.
The Board concludes that the RO letter sent in June 2003
adequately informed the veteran of the information and
evidence needed to substantiate his claim for an increased
rating, complied with VA's notification requirements and set
forth the laws and regulations applicable to his claim. In
sum, the veteran was notified and aware of the evidence
needed to substantiate his claim, and the avenues through
which he might obtain such evidence, and of the allocation of
responsibilities between himself and VA in obtaining such
evidence. He was essentially told to submit evidence he had
in his possession. See Quartuccio v. Principi, 16 Vet. App.
183 (2002). Ina statement received in October 2005, the
veteran stated that he did not have additional evidence to
submit.
The veteran was not provided with notice of the type of
evidence necessary to establish the effective date for an
increased rating claim. Despite the inadequate notice
provided to the veteran concerning this element, the Board
finds no prejudice to him in proceeding with the issuance of
a final decision.
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159(c). The record reflects that the RO
obtained, or the veteran submitted, the veteran's service
medical records, and post-service medical records identified
by the veteran. Several VA examinations were obtained.
Therefore, the Board finds no prejudice to the veteran in
proceeding with the issuance of a final decision on this
claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby).
B. Analysis
Disability evaluations are determined by comparing current
symptomatology with the criteria set forth in VA's Schedule
for Rating Disabilities (Rating Schedule), which is based on
average impairment in earning capacity. See 38 U.S.C.A. §
1155; 38 C.F.R. Part 4. When a question arises as to which
of two ratings apply under a particular diagnostic code, the
higher evaluation is for assignment if the disability more
closely approximates the criteria for the higher rating.
Otherwise, the lower rating is for assignment. 38 C.F.R. §
4.7. After careful consideration of the evidence, any
remaining reasonable doubt is resolved in favor of the
veteran. 38 C.F.R. § 4.3. In addition, a disability rating
may require reevaluation in accordance with changes in a
veteran's condition. In determining the level of current
impairment, the disability must be considered in the context
of the entire recorded history. 38 C.F.R. § 4.1. In cases
where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, however, the current level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55 (1994).
The evaluation of a service-connected disability that
involves a joint that is rated upon limitation of motion also
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40, as well as any functional loss
due to weakness, fatigability, incoordination, or pain on
movement of a joint under 38 C.F.R. § 4.45. See DeLuca v.
Brown, 8 Vet. App. 202 (1995).
The veteran's service-connected knee disabilities are
currently assigned a 10 percent evaluations under Diagnostic
Code 5014 (osteomalacia) which rates the disability on
limitation of motion of the affected part as degenerative
arthritis (Diagnostic Code 5003). Under Diagnostic Code
5003, degenerative arthritis that is established by X-ray
findings is rated on the basis of limitation of motion under
the appropriate diagnostic codes for the specific joint or
joints involved. When, however, the limitation of motion of
the specific joint or joints involved is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent is
for application for each such major joint or group of minor
joints affected by limitation of motion, to be combined and
not added under Diagnostic Code 5003. Limitation of motion
must be objectively confirmed by findings such as swelling,
muscle spasm, or satisfactory evidence of painful motion. In
the absence of limitation of motion, and when there is X-ray
evidence of involvement of two or more major joints or two or
more minor joint groups with occasional incapacitating
exacerbations, a 20 percent disability rating is for
assignment. Id.
Separate disability ratings may be assigned for distinct
disabilities that result from the same injury, as long as the
symptomatology for one condition is not "duplicative of or
overlapping with the symptomatology" of the other condition.
See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The
evaluation of the same disability or the same manifestation
of a disability under different diagnostic codes, however,
also known as pyramiding, is to be avoided when rating
service-connected disabilities. See 38 C.F.R. § 4.14.
VA's Office of General Counsel (General Counsel) has provided
much guidance concerning increased rating claims for knee
disabilities. In VAOPGCPREC 23-97, the General Counsel
determined that a veteran who has arthritis and instability
of the knee may be rated separately under Diagnostic Codes
5003 and 5257, as long as the separate rating is based upon
additional disability. When a knee disorder is already rated
under Diagnostic Code 5257, then the veteran must also have
limitation of motion under Diagnostic Code 5260 or Diagnostic
Code 5261 in order to obtain a separate rating for arthritis.
If the veteran does not at least meet the criteria for a zero
(0) percent (noncompensable) rating under either of those
codes, then there is no additional disability for which a
rating may be assigned.
Per VAOPGCPREC 9-98, the General Counsel also determined that
if radiologic findings of arthritis are present, if the
arthritis results in compensable loss of motion, or to a
separate compensable evaluation under Diagnostic Code 5003 if
the arthritis results in noncompensable limitation of motion
and/or objective findings or indicators of pain, then a
veteran is additionally entitled to a separate compensable
evaluation under Diagnostic Code 5257 if he manifests
subluxation or lateral instability.
As well, per VAOPGCPREC 9-04, the General Counsel held that
separate disability ratings could be assigned under
Diagnostic Code 5260 and Diagnostic Code 5261 for disability
of the same joint, without violating the provisions against
pyramiding at 38 C.F.R. § 4.14.
As noted above, the veteran's knee disabilities are rated
under Diagnostic Code 5003, which is to be evaluated, if
possible, in terms of whether such disease causes limitation
of motion of the affected part. For VA purposes, standard
flexion and extension of the knee is from 0 to 140 degrees.
38 C.F.R. 4.71, Plate II. Under Diagnostic Code 5260, a 10
percent rating is assigned for flexion limited to 45 degrees,
while a 20 percent rating is warranted for flexion limited to
30 degrees. Under Diagnostic Code 5261, a 10 percent rating
is assigned for extension limited to 10 degrees, while a 20
percent rating is warranted for extension limited to 15
degrees.
Diagnostic Code 5257, on the other hand, provides that for
other knee impairment manifested by slight recurrent
subluxation or lateral instability, a 10 percent evaluation
is available. Where recurrent subluxation or lateral
instability is moderate, a 20 percent evaluation is
warranted, and where it is severe, a 30 percent evaluation is
for assignment. Id. The Rating Schedule does not define the
words "mild," "moderate," and "severe." Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence to the end that its decisions are "equitable and
just." 38 C.F.R. § 4.6. It should also be noted that the
use of descriptive terminology such as "mild" by medical
examiners, although an element of evidence to be considered
by the Board, is not dispositive of an issue.
Historically, the veteran has been in receipt of service
connection rated 10 percent disabling for a left knee
disability from October 1978 by analogy to Diagnostic Code
5014. The veteran was granted secondary service connection
for a right knee disability rated 10 percent disabling from
September 1993, again by analogy to Diagnostic Code 5014.
According to 38 C.F.R. § 4.71a, Diagnostic Codes 5013 to 5024
are rated based on limitation of motion of the affected part
like that applied in Diagnostic Code 5003.
In May 2003, the veteran requested an increased rating for
his service-connected knee disabilities, contending that the
symptoms and manifestations of the disabilities had increased
in severity.
A VA examination was conducted in July 2003. The veteran
stated that both knees are painful, pop out of place on
occasion, and are instable. Left knee range of motion was 0
to 130 degrees; the right knee range of motion was 0 to 115
degrees. The examiner did not find a McMurray's sign (test
for knee stability). The examiner opined that both knee
conditions started out a patellofemoral syndromes. The
examiner noted that a subsequent X-ray study found minimal
DJD of the right knee.
At a January 2005 VA examination, active left knee range of
motion was 0 to 140 degrees, with pain at 100 to 140 degrees;
and active right knee range of motion was 0 to 110 degrees,
with pain at 90 to 110 degrees. Right knee passive range of
motion was 0 to 125 degrees with pain at 90 to 125 degrees.
The regarding was additional loss of use with repetitive
motion or flare ups due to pain and swelling. The left knee
had a slight opening to varus stress, and the right knee had
1+ instability to varus stress. The diagnosis was
osteochondroma of left medial femoral compartment which was
of no consequence in the veteran's joint complaints; and DJD
and mild instability of both knees, right greater than left,
with chondromalacia involving the patellofemoral
compartments, and wearing of the femoral condyles. A X-ray
report dated the same month diagnosed mild bilateral DJD.
As to his current 10 percent rating for service-connected
left knee injury residuals in the form of DJD (also known as
arthritis), the Board observes that the medical evidence of
record does not reveal clinical findings of flexion limited
to 45 degrees or less, or of extension limited to 15 degrees
or more, so as to provide for a higher rating (or for at
least two separate 10 percent ratings per VAOPGCPREC 9-04).
Rather, the competent medical evidence reflects that he has
flexion to greater than 45 degrees and extension to greater
than 15 degrees. The Board therefore finds that, per
Diagnostic Code 5003, the veteran's left knee impairment, in
the form of limitation of motion caused by DJD, does not meet
the criteria for the assignment of a higher evaluation. 38
C.F.R. §§ 4.7, 4.71a. The Board has also considered whether
the factors addressed at 38 C.F.R. §§ 4.10, 4.40, 4.45 and
4.59 warrant the assignment of a higher evaluation under
these codes. See also DeLuca v. Brown, 8 Vet. App. 202, 205-
207 (1995). Here, however, the veteran's pain did not limit
motion to approximate the next higher rating, the Board is
unable to assign a higher evaluation for bilateral knee DJD
under Diagnostic Code 5260 and/or Diagnostic Code 5261 per
DeLuca. Thus, a preponderance of the evidence is against an
evaluation greater than a 10 percent rating for his service-
connected bilateral knee disabilities, identified as DJD.
The Board further finds, however, that the medical evidence
of record, especially as bolstered by the January 2005 VA
examination report, which diagnosed mild bilateral knee
instability, supports the award of a separate 10 percent
rating under Diagnostic Code 5257 for in the form of other
knee impairment (slight recurrent subluxation and/or lateral
instability). See VAOPGCPREC 23-97; VAOPGCPREC 9-98. The
record shows that the veteran has reported episodes of knee
instability, the VA examination report found mild bilateral
lateral knee instability. For that reason, the Board finds
that while a separate rating under Diagnostic Code 5257 is
warranted for both knees in this evidence of record, it
cannot assign the veteran more than a 10 percent rating, in
recognition of mild instability during medical examination.
38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.71a.
The Board has also considered whether any other diagnostic
codes may afford the veteran a higher rating for his left
knee disability. In this case, however, there is no
competent medical evidence of: knee ankylosis (Diagnostic
Code 5256); dislocation or removal of a semilunar cartilage
(Diagnostic Code 5258 and Diagnostic Code 5259); tibia and
fibula impairment (Diagnostic Code 5262); or genu recurvatum
(Diagnostic Code 5263). Evaluation under these diagnostic
codes, therefore, would not provide the veteran with an
increased disability rating.
ORDER
An evaluation in excess of 10 percent for the service-
connected left knee disability, identified as degenerative
joint disease (DJD), is denied.
A separate evaluation of 10 percent, and no more, for the
service-connected left knee disability, identified as lateral
instability, is granted.
An evaluation in excess of 10 percent for the service-
connected right knee disability, identified as degenerative
joint disease (DJD), is denied.
A separate evaluation of 10 percent, and no more, for the
service-connected left knee disability, identified as lateral
instability, is granted.
____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs